If the police conduct a search of your stuff, i.e. your house, your car, your cell phone records, they normally need to get a warrant. If they think you have a tattoo on your butt depicting the murder weapon, they would have to go to a judge, explain their case and ask for a warrant to pull down your pants so that they could get a look. If they didn’t get a warrant and just went ahead with it anyway, there’s a good chance that the court would say that the evidence obtained (a description or photos of your tattoo) would be inadmissible and not useable by the prosecution to prosecute you.
In the case of a screening breathalyzer test, there is no warrant. There is no asking a judge before forcing a person to take the test. There is no judicial authorization. And even if there were an application for a warrant, it’s unlikely that a judge would issue a warrant in the normal course because there isn’t even the necessary opinion of a police officer. To get a warrant, a police officer needs to demonstrate that they have a belief that an offence has been committed on the basis of good solid evidence. If they’re lacking the belief and reasonable grounds for the belief, they shouldn’t get a warrant.
When it comes to a demand for screening breathalyzer tests, the officer has no such belief. All an officer has is a suspicion that a driver has alcohol in their body. At the point in the investigation that an officer makes an ASD demand, all they have is the suspicion that the person might have committed an offence. If that.
So not only is there no warrant, they couldn’t get a warrant based on a suspicion even if they tried. So what’s the legal authority?
The section of the Criminal Code permitting breathalyzer screening tests gives the police the right and the obligation to make a warrantless search on the basis of a mere suspicion. It’s a huge jump. Not only is it a warrantless search, it’s a search made in circumstances where you couldn’t normally get a warrant even if you tried.
Imagine if the police could simply kick in your door and search through your stuff on the mere suspicion that you have a cockpit in your basement contrary to section 447 of the Criminal Code. Thank goodness they can’t, otherwise they’d be kicking your door in right now probably.
The point is important. A screening breathalyzer test is a warrantless search permitted on the basis of a mere suspicion. It is a warrantless search made without “warrant,” that is, without reasonable grounds. It is only permitted to take place because the results of the warrantless search are inadmissible for punishment and only admissible to provide the officer with reasonable and probable grounds to permit further investigation. Except in BC where the government wrote the IRP law to punish people on the basis of evidence obtained through a search conducted in violation of the right to counsel; made without warrant or even reasonable and probable grounds to believe an offence was committed.
Necessary postscript: How we feel about IRPs
As far as we’re concerned, the IRP scheme is an affront to the justice system and an embarrassment for British Columbia. As really damn serious DUI lawyers, we attend international conferences and consult with scientists from around the world. When we try to explain what’s going on in British Columbia, everyone seems to think that we’re governed by ignorant hillbillies. They have a point.
In the rest of the world they don’t use roadside screeners as a basis for punishment. In the rest of the world they don’t seize your vehicle without an order from a judge. In the rest of the world they take steps to protect the citizens from arbitrary police behaviour.
And by the rest of the world, we mean countries where there is a long and strong tradition of protecting individuals from the oppressive apparatus of the government. Apparently this isn’t such a strong tradition in British Columbia.
We think that the BC Legislature was misled about the IRP scheme when it was presented to them by the Government. We think that the Charter violations will eventually be clear to the Courts. Whether there is a remedy is another issue, however.
Ultimately, we think that IRPs are immoral. We think that it’s wrong to punish people on the basis of roadside screening tests and without a trial. So we made ourselves the best IRP lawyers in the world. We succeed in more than double the number of IRP appeals than any other law office in BC. We took it upon ourselves to oppose the law and vigorously appeal IRPs for our clients.
The bad news is that the law (written by hillbillies?) is still on the books. The good news is that in our law office we succeed in a hell of a lot of IRP appeals.
If you have a friend with an IRP, tell them to call us. If you just got an IRP, chances are that we’re already figuring out why you’re innocent and how to defend you.